On this page

Meet the author

the Council ‘had no viable and practical alternative but to require Mrs [M] to work Sundays’ and the PCP was not discriminatory

Mba v Mayor and Burgesses of the London Borough of Merton 2013

The facts

Mrs M is a practising Christian who has ‘a deep and sincere belief that Sunday is a day for worship and not for work’.

Mrs M worked for the London Borough of Merton (‘the Council’) as a care assistant in a children’s home. The Council needed 24/7 coverage at the home and Mrs M’s contract of employment included a clause that she would undertake work at weekends and on bank holidays ‘if required by the shift rota’.

For the first two years the Council managed to arrange the rota so Mrs M did not have to work on a Sunday. The Council was unable to accommodate this on an ongoing basis and Mrs M refused to work on the Sundays she was scheduled to resulting in a final written warning. Mrs M appealed. The appeal was rejected and Mrs M resigned. Mrs M commenced proceedings in the employment tribunal which included a claim for indirect religious discrimination.

The decision

In this case the employment tribunal found that the Council required its staff to work Sunday shifts and this was a provision, criterion or practice (PCP). The Council accepted that, as some Christians believe that working on a Sunday is unacceptable, Christians would be less able to work on Sunday than others and that Mrs M, as a Christian who believed Sunday working was unacceptable, was unable to work on a Sunday and therefore unable to comply with the PCP. The PCP was therefore potentially indirectly discriminatory.

The employment tribunal, however, found the Council ‘had no viable and practical alternative but to require Mrs [M] to work Sundays’ and the PCP was a proportionate means of achieving a legitimate aim. It was not therefore discriminatory. The Council relied on its need of ‘effective running of its business ... service delivery ... and ... costs and staffing’. This conclusion was not challenged by Mrs M.

Whether the PCP was a proportionate means of achieving a legitimate aim involves a balance between the discriminatory impact on Mrs M and the reasonable needs of the Council. In reaching its decision the employment tribunal took into account that Mrs M’s ‘belief that Sunday should be a day of rest ... is not a core component of the Christian faith’. Mrs M claimed this should not have been taken into consideration.

The case was considered by three Judges in the Court of Appeal whose views varied slightly. Lord Justice Maurice Kay’s view was that whether the belief was a core belief was relevant to assessing whether there was a group disadvantage (in this case whether Christians were less able to work on Sundays than others) but not proportionality. Lord Justices Elias and Vos disagreed. They took the view that whether the belief was ‘a core element’ was relevant. They felt that the more people the belief affects, the greater the impact of the PCP and the harder it would be to justify. All three agreed, however, that it made no difference as the Council ‘had no viable and practical alternative but to require Mrs [M] to work Sundays’.

In practice

This case reminds employers that it is difficult to work out if they are applying a PCP and how to assess if their actions are proportionate and what they should take into account. Even the Judges cannot agree!

Importantly, however, the Council was found not to have discriminated by requiring Mrs M to work on a Sunday as it had demonstrated that there was no ‘viable and practical alternative but to require Mrs [M] to work Sundays’. Consideration of the discriminatory impact of the PCP on the individual, the alternatives that are available and their practicality will be key. They should be the focus of any employer considering a complaint of indirect discrimination.

If you have a particular query or issue about allegations of discrimination our specialist employment law and discrimination solicitors would be pleased to hear from you.

Clear, concise and accurate information for employers and HR professionals

Individuals are protected from being directly and/or indirectly discriminated against in connection with a protected characteristic under the Equality Act 2010 (EqA). Under Article 9 of the European Convention on Human Rights (ECHR), individuals are guaranteed “the right to freedom of thought, conscience and religion; this right includes freedom ... to manifest his religion or belief, in worship, teaching, practice and observance.” The cross-compatibility of the two directives was considered in this case.

Employment Law and HR Expertise

With my firm's partner-led expertise we can help your organisation with its everyday employment law and HR problems through to your difficult, complex or high value cases.

I am confident you will like my firm's robust but sensible advice as it will reflect your way of doing things. This is why we don't offer a "one-size-fits- all" approach; nor do we offer stock answers or give out scripted, risk adverse advice.

Plus our tribunal and court litigation experience will give you the advantage, reassurance and confidence that we can vigorously defend your organisation's position.

Please contact me to discuss how we can help you. I would be delighted to hear from you.